Depositions: does the plaintiff attend defendant’s depositions?

A search string I’ve received several times. Although I’ve pretty well answered it in a couple of previous posts − especially this one, when I advise that a plaintiff must attend the defendant’s deposition and why − let me go on a bit further.

First, all parties in a case − that is, the plaintiff(s) and defendant(s) − have the right to attend all depositions. And you need to avail yourself of that right.

If you have more than one defendant, all of ’em have the right to go to all depositions. Your defendants may claim that a particular deposition date isn’t good for all of them, and get to postpone the deposition until all of them can be there. It’s annoying and time-consuming, but it’s their right and in the end it’s pointless. If you have a good case − and if you didn’t, you wouldn’t have filed it in the first place − it’ll be good no matter what they do and how long it takes for them to do it.

When you’re there facing your defendant, his deposition can be unpleasant for you, but it is usefully unpleasant, especially if your defendant tells lies. (My opinion: defendants are more likely to lie during depositions than plaintiffs, yippee.) In that case, the unpleasantness should transform itself into your pleasure.

The point of depositions is personal exploration beyond the exploration coming from reading and analyzing discovery documents. Your lawyer wants to find out what the defendant has to say about the case, and about you, the person suing him. And she’s probably never met the defendant personally; her contact has been predominantly with the defendant’s lawyer. So aside from asking him questions about the case, she’s evaluating his character, his presentation.

(By the way, if and when you describe your defendant to your lawyer, be honest and clear. No need to say he has horns coming out of his head. Tell her if he might seem pleasant and reasonable. It will not help your lawyer to evaluate the defendant if you’ve exaggerated his faults. An illustrative incident: at the end of one of my depositions, the defendant’s lawyer said spontaneously, “You seem like a really nice person.” I replied, “I am.” “That’s not what my client said about you,” he responded. Don’t put your lawyer in the same position. She doesn’t have to think your defendant is evil incarnate; she just has to learn that he’s done you wrong, per the law.)

Your lawyer has a number of documentary tools at her disposal during depositions, which she can offer as exhibits, handing them to the defendant and then asking questions about them. And his answers might include lies, or answers that do not come under the heading of vigorous defense.

That’s why you want to be at your defendant’s deposition. Maybe he’ll falsely accuse you of being the cause of the bad things that happened. Yes, that old The Devil Made Me Do It defense.

Or maybe he’ll say, “We sent people to repair the damage in her apartment but she didn’t let them in.” (That’s a defense that has appeared in a couple of recent co-op lawsuits.)

You want to be there because only you know the actual facts of your case, and only you will know that your defendant is lying or twisting the truth or getting all the dates wrong, because you did admit a contractor to evaluate the repairs in your apartment but the co-op never − despite your multiple requests, all established in documents such as emails − sent the contractor to actually do the repairs.

And there you are, at that deposition, knowing the truth, and taking notes.

Moreover, as I have previous said, when there’s a break in the deposition (bathroom, lunch, etc), you can tell your lawyer what you picked up, in case there are follow-up questions she’ll want to ask the defendant.

But how do you behave when you’re facing a guy who lies about you, and maybe seems very smooth and persuasive?

Simple. You do not react at all. You look directly at him when he says nasty things about you − and if he’s a practiced liar, he’ll be looking directly at you − and you don’t do what you want to do: yell, stand up and point at him and say, “You lie! you lie!” You do not talk, mutter, or murmur.

And you don’t jump across the room to attack him physically. That would be a bad move, because the defendant’s lawyer might be evaluating you, to see how you react to his client’s accusations, to see if any of them prick you, to see if anything sticks.

So when you sit there during that deposition hold onto this thought: if he lies about you, he has put himself into a hole which will become apparent when you and your lawyer review his deposition testimony. If he lies about you, he is giving you ammunition against him. And accusing you of doing things you didn’t do is not a defense, anyway, especially when what he falsely accuses you of isn’t a breach of any law.


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